If a marshal, before the date of his official bond, receive,
upon an execution, money due to the United States with orders from
the Comptroller to pay it into the Bank of the United States, which
he neglects to do, the sureties in his official bond, executed
afterwards, are not liable therefor upon the bond, although the
money remain in the marshal's hands after the execution of the
bond.
Quaere whether the sureties in a marshal's bond
conditioned for the faithful execution of his duty "during his
continuance in the said office" are liable for money received by
him after his removal from office upon an execution which remained
in his hands at the time of such removal.
The Comptroller of the Treasury has a right to direct the
marshal to whom he shall pay money received upon executions, and a
payment according to such directions is good, and it seems he may
avail himself of it upon the trial without having submitted it as a
claim to the accounting officers of the Treasury.
No debtor of the United States can, at the trial, set off a
claim for a debt due to him by the United States unless such claim
shall have been submitted to the accounting officers of the
Treasury and by them rejected, except in cases provided for by the
statute.
This was a case certified from the Circuit Court for the
District of New York, in which the opinions of the
Page 13 U. S. 213
judges of that court were opposed upon ten questions of law
arising out of a special verdict.
It was an action of debt brought by the United States against
Giles, late Marshal of the District of New York, and his sureties
upon his official bond, dated 9 January, 1801, the condition of
which was as follows:
"Whereas the above bound Aquila Giles hath been appointed the
Marshal in and for the New York District in pursuance of the act
entitled 'An act to establish the judicial courts of the United
States,' now therefore, the condition of the preceding obligation
is such, that if the said Aquila Giles shall, by himself and by his
deputies, faithfully execute all lawful precepts directed to the
marshal of the said district under the authority of the United
States, and true returns make, and in all things well and truly and
without malice or partiality, perform the duties of the office of
marshal, in and for the said District of New York, during his
continuance in the said office, and take only his lawful fees, then
the preceding obligation to be void, or else to remain in full
force and virtue."
The defendants pleaded performance. The replication set forth
six breaches of the condition of the bond.
1. That the United States having, in May, 1799, recovered
judgment in the district court against one John Lamb for the sum of
$127,952.99 debt, and $20 damages, a writ of
fieri facias,
was thereupon issued and delivered to the defendant, Giles, then
being marshal, upon which he returned in August, 1799, that he had
taken goods and chattels to the value of $50, which remained unsold
for want of buyers, whereupon a writ of
venditioni exponas
and
fieri facias, was issued and delivered to the said
defendant, Giles, on 9 January, 1800, by virtue whereof he sold the
said goods and chattels for $50, which sum he received, and also,
by virtue of the said writ, sold lands of Lamb to the amount of
$60,000, which sum he received and continued to hold until 1
February, 1801, when he converted the same to his own use, contrary
to the tenor and effect of the condition of his said bond.
Page 13 U. S. 214
2. That by virtue of the said writ, the defendant, Giles, on 17
September, 1800, sold other lands of Lamb, for $60,000, which he
received on 20 January, 1801, and on that day converted the same to
his own use, contrary to the tenor and effect of the condition of
the bond.
3. That on 17 December, 1800, the Comptroller of the Treasury of
the United States directed the defendant Giles to pay into the
Office of Discount and Deposit of the Bank of the United States, at
New York, to the credit of the account of the Treasurer of the
United States, all such sums of money as should be made from the
property of Lamb, by virtue of the aforesaid writ. That the
defendant, Giles, afterwards, on 23 December, 1800, by virtue of
that writ sold other lands of Lamb, to the amount of $60,000, which
he received on 15 January, 1801, but has not paid the same, nor any
part thereof, into the said Office of Discount and Deposit in the
manner directed, contrary to the tenor and effect of the condition
of his said bond.
4. That on 1 February, 1801, the defendant, Giles, being marshal
as aforesaid, had in his hands as marshal, 14 bonds, the property
of the United States (particularly described), and on that day
converted the same, to his own use, contrary to the tenor and
effect of the condition of his bond aforesaid.
5. That the defendant, Giles, having, in September, 1800, made
the sum of $309.87, by virtue of a
fieri facias, in behalf
of the United States, against one Richard Capes, and having
received the same, converted it to his own use on 1 February, 1801,
contrary to the tenor and effect of the condition of his bond.
6. That the defendant, Giles, having so received all the several
sums of money before mentioned, retained the same in his hands
until 27 March, 1801, when he was duly removed and dismissed from
his office of marshal, and ceased to be marshal of the New York
District, and has retained the said several sums of money in his
hands ever since. That on 2 June, 1804, he was duly notified
according to law, by the Comptroller
Page 13 U. S. 215
of the Treasury of the United States, to render to the auditor
of the Treasury of the United States on or before 10 October, then
next, all his accounts and vouchers for the expenditure of all
monies received by him as marshal of the New York District, but he
has never rendered the same, contrary to the tenor and effect of
the condition of his bond aforesaid.
The defendants rejoined,
1. To the first breach, that the defendant, Giles, received the
sum of $50, and sold the lands of Lamb for $30,000 and no more.
That by the orders of the Comptroller of the Treasury of the United
States, he received on 10 December, 1800, from the purchasers
$11,000, and no more, in cash, in part of the said sum of $30,000,
and took from them, by the like orders of the said Comptroller,
their respective bonds and mortgages, 30 in number, for $19,000
being the residue of the said sum of $30,000. That on that day the
United States was justly indebted to the said Giles in the sum of
$20,000, for money paid by him at their request for their use, and
for fees justly due by them to him as marshal, and for services
performed by him for them at their request, when he retained in his
hands the said sums of $50, and $11,000, as it was lawful for him
to do, in part payment and satisfaction of the sum of $20,000 so
due to him from the United States, and then and there delivered to
the United States, the said several bonds and mortgages in full
payment and satisfaction of the said residue of the said sum of
$30,000. Without that, that he converted to his own use the said
sums of $50 and $60,000, in the replication, in assigning the first
breach mentioned, or any part thereof in manner and form, &c.,
any otherwise than by retaining the said sums of $50 and $11,000 as
aforesaid.
2. To the second breach, they say that on 17 December, 1800, the
defendant Giles, by virtue of the said writ, sold other lands of
the said Lamb for the sum of $29,383.30, and no more, and that by
order of the Comptroller he received from the purchasers only the
sum of $10,000, and took their bonds and mortgages, 30 in number,
for the payment
Page 13 U. S. 216
of the balance, being $19,383.30. That the United States was on
that day justly indebted to him in the sum of $20,000 for monies
expended, &c., and for fees, and services, &c., wherefore
he retained in his hands $8,950, part of the $10,000 in part
payment and satisfaction of the said sum of $20,000, and paid to
the United States the sum of $1,050, the residue of the said sum of
$10,000, and delivered to the United States the 30 bonds and
mortgages aforesaid in full payment and satisfaction of the
aforesaid sum of $29,383.30; without that, that the said Giles
converted to his own use, &c., otherwise than by retaining the
said sum of $8,950 as aforesaid, &c.
3. To the third breach, they say that the said Giles did not
receive $39,000, parcel of the said $60,000, but that he received
in all the sum of $21,000 only from the buyers of the lands of the
said John Lamb, and that the United States was on the said 15
January, 1801, justly indebted to the said Giles in the sum of
$22,000, wherefore he did not pay the said sum of $21,000 or any
part thereof into the Office of Discount and Deposit of the Bank of
the United States, &c., but then and there retained the same in
his own hands, as it was lawful for him to do, &c.
4. To the fourth breach they say that the said Giles, on 1
February, 1801, delivered the said bonds to the attorney for the
United States -- without that, that he converted them to his own
use, &c.
5. To the fifth breach, they say that on 8 January, 1801, the
United States was justly indebted to Giles, in the sum of $22,000,
wherefore he retained the said sum of $309.87, in part payment and
satisfaction of the said sum of $22,000; without that, that he
otherwise converted the same to his own use, &c.
6. To the sixth breach, they aver that Giles did render his
accounts to the auditor on 10 October, 1804, as he was required to
do.
To these rejoinders there were general surrejoinders
Page 13 U. S. 217
and issues except as to the rejoinder to the third breach, upon
which the plaintiffs took issue as to $39,000 and demurred as to
the retainer of the $21,000, upon which demurrer the court gave
judgment for the United States.
The jury found a special verdict which stated in substance, as
follows:
1. As to the first breach, it finds that the defendant Giles was
authorized by the officers of the Treasury Department of the United
States, in executing the aforesaid writ of
fieri facias,
to sell the lands of the said John Lamb on the following terms,
viz., one-fourth of the purchase money to be paid in cash,
one-fourth with interest in 2 years, one-fourth with interest in 3
years, and the residue with interest in 4 years from the day of
sale, to be secured by bonds and mortgages, and was directed by the
Comptroller of the Treasury on 17 December, 1800, to pay over all
monies he might receive therefor into the Office of Discount and
Deposit of the Bank of the United States in the City of New York to
the credit and account of the Treasurer of the United States. That
the sales were commenced on 26 November and continued from time to
time to 23 December, 1800. That Giles received from the purchasers
before 9 January, 1801 (the date of the bond), $3,713.98, and no
more, which sum, together with the sum of $50, which he had before
received for the sales of the goods and chattels of the said John
Lamb, be never had, nor any part thereof, before the said district
court, to render to the United States, and never paid the same nor
any part thereof into the said Office of Discount and Deposit, and
that he has never been required by any rule or order of the said
district court to bring the said monies into the court nor to pay
them over in any manner whatever. That between August, 1800, and
May, 1801, he arrested one Elias Hicks by virtue of a writ of
ca. sa. in favor of the United States for $80,000, and by
an endorsement thereon was directed to levy, by virtue thereof,
$33,156.38, besides marshal's fees and poundage. That he kept the
said Hicks in custody, in execution, until he was discharged by
order of the Secretary of the Treasury of the United States
pursuant to the act of
Page 13 U. S. 218
Congress, entitled "An act providing for the relief of persons
imprisoned for debts due to the United States." That the poundage
fees for the service of that writ, if any such fees were due to the
defendant Giles thereon have not been paid to him, and that they
amounted to the sum of $419.57.
That the United States also became indebted to the defendant
Giles in the further sum of $8,133.96 for his own fees and services
in taking the second census or enumeration of the inhabitants of
the United States in the said district, and for monies paid by him
as marshal as aforesaid to his assistants in taking the said
census, pursuant to the act of Congress in such case provided,
which several sums, so due from the United States to the said
Giles, amount to the sum of $8,553.53, and that he has retained the
said sums of $50 and $3,713.98 from the times when they were
received by him, and still retains them, claiming to hold and
retain the same towards the payment and satisfaction of an equal
sum due to him from the United States as aforesaid. But whether
upon the whole matter aforesaid the said Giles did in law convert
the said several sums of $50 and $3,713.98 to his own use, contrary
to the tenor and effect of the condition of his said bond, the
jurors aforesaid are ignorant, &c., and if the said Giles did
so convert, &c., it assesses the damages at $3,763.98, and if,
&c.
2. As to the second breach they find that the said Giles, having
received such instructions as aforesaid from the Comptroller of the
Treasury, and having sold the lands as aforesaid, afterwards, and
after 9 January, 1801 (the date of the bond), and at different
times before the commencement of this suit, received of certain
other purchasers of the said lands several other sums of money,
viz., before 27 March, 1801, (when he was removed from
office) the sum of $1,683.52, and after that day the sum of
$17,191.58, which two sums amount to $18,875.10, which was all the
money he received from the said purchasers after 9 January, 1801,
and that the poundage, and charges due to and paid by the said
Giles upon the execution and the said sales, and
Page 13 U. S. 219
legally chargeable against the proceeds of the said sales
amounted to the sum of $1,332.85, which being deducted from the
said sum of $18,875.10, left the net sum of $17,542.25 in the hands
of the said Giles of the money so received by him after 9 January,
1801. That on 13 April, 1803, he paid part of the same,
viz., $6,238.35, to Edward Livingston, who was then the
United States attorney for the New York District, which payment was
so made with the assent and approbation of the Comptroller of the
Treasury of the United States, and agreeably to the usage and
practice in that district; that the said Giles never had the said
sum of $6,238.35 nor any part thereof before the district court to
render to the United States and has never paid the same to the
United States in any other manner than by the said payment to the
said Edward Livingston (if such payment was a payment to the United
States) and never paid the same, nor any part thereof into the
Office of Discount and Deposit, &c.
That as to another part of the said sum of $17,542.25, to-wit,
as to the sum of $4,479.68, the said Giles never had the same, nor
any part thereof, before the district court to render to the United
States, nor paid the same into the said Office of Deposit, &c.,
but has ever since held and retained the same, claiming to hold and
retain the same towards payment and satisfaction of an equal sum so
due to him by the United States as aforesaid.
That as to the residue of the said sum of $17,542.25, to-wit, as
to the sum of $6,824.25, the said Giles never had the same nor any
part thereof before the district court to render to the United
States, nor paid the same to the United States nor into the Office
of Discount and Deposit, &c., but still retains the same; but
whether, in law, he converted the said three sums,
viz.,
the $6,238.35 -- $4,479.68 -- and $6,824.25, or either of them to
his own use contrary to the tenor and effect of the condition of
his said bond, they are ignorant, &c. If in law he so converted
the whole to his own use, then it so finds and assesses
Page 13 U. S. 220
damages at $20,613.12. If he did not so convert the first of the
said three sums, but did so convert the other two, then it so finds
and assesses damages at $14,374.77. If he did not so convert the
first and second of the said three sums, but did so convert the
third, then it so finds and assesses damages at $9,895.09. If he
did not so convert the said third sum, but converted the two first
sums, then it so finds and assesses damages at $10,718.03. If he
did not so convert the said second sum, but converted the first and
third sums, then it so finds and assesses damages at $16,133.44. If
he did not so convert the two last of the said three sums, but
converted the first, it so finds and assesses damages at $6,238.35.
If he did not so convert the first and third of the said three
sums, but converted the second, then it so finds, and assesses
damages at $4,479.68. And if he did not so convert either of the
said three sums to his own use, then it so finds.
3. As to the third breach, the jurors find that the defendant,
Giles, did not receive the sum of $39,000, and as to the judgment
upon the demurrer respecting the retainer of the sum of $21,000, it
assesses damages at $21,000.06.
4. As to the 4th breach, it finds that the defendant Giles kept
possession of the said fourteen bonds, from 1 February, 1801, until
3 January, 1803, when he delivered them with the assent and
approbation of the Comptroller of the Treasury of the United States
to Edward Livingston, then being the United States Attorney for the
District of New York. That on 12 January, the Comptroller of the
Treasury of the United States directed the said Giles to deliver
the said fourteen bonds to his successor in office, John Swartwout,
marshal of the said district, which the said Giles did not do.
But whether upon the whole matter aforesaid he did, in law,
convert the same bonds to his own use, contrary to the tenor and
effect of the condition of his said bond, it is ignorant, &c.,
and if, &c., then it assesses damages at $5,255.73.
Page 13 U. S. 221
5. As to the fifth breach, it finds that the defendant, Giles,
having levied and received the said sum of $309.87, never had the
same before the district court to render to the United States, nor
paid the same to the United States, but retains the same claiming
to hold it in payment and satisfaction of so much due to him by the
United States as aforesaid, but whether in law he converted the
same to his own use, contrary to the tenor and effect of the
condition of his said bond they are ignorant -- and if, &c.,
then it assesses damages at $309.87.
6. As to the sixth breach, it finds that the defendant Giles did
not render to the auditor of the Treasury of the United States all
his accounts and vouchers, &c., in manner and form as the
defendants in their rejoinder have averred, and assesses damages at
six cents.
This cause came up to this Court in the year 1812, with a
certificate from the court below that after argument upon the
special verdict thereunto annexed,
"it appeared that the opinions of the judges were opposed upon
all the points submitted by and in the said special verdict, and
thereupon at the request of the attorney of the United States for
the said district, the judges of the said court have directed this
disagreement of opinion to be certified,"
&c.
But this Court, upon inspecting the record, was of opinion that
the points on which the opinions of the judges of the circuit court
were opposed, were too imperfectly stated to enable this Court to
form an opinion thereon.
Whereupon the cause was remanded to the circuit court, and came
back with a certificate that the opinions of the judges of that
court were opposed upon the ten following questions arising on the
said special verdict,
viz.,
1. Whether judgment ought to be given for the plaintiffs
Page 13 U. S. 222
or for the defendants as to the sum of $3,763.98, being the
damages assessed upon the first breach.
2. Whether, &c., as to the sum of $20,613.12, being the
first sum assessed as conditional damages upon the second
breach.
3. Whether, &c., as to the sum of $14,374.77, being the
second sum assessed as conditional damages on the second
breach.
4. Whether, &c., as to the sum of $9,895.09, being the third
sum assessed as conditional damages on the second breach.
5. Whether, &c., as to the sum of $10,718.03, being the
fourth sum assessed as conditional damages on the second
breach.
6. Whether, &c., as to the sum of $16,133.14, being the
fifth sum assessed as conditional damages on the second breach.
7. Whether, &c., as to the sum of $6,238.35, being the sixth
sum assessed as conditional damages on the second breach.
8. Whether, &c., as to the sum of $4,479.68, being the
seventh sum assessed as conditional damages on the second
breach.
9. Whether, &c., as to the sum of $5,255.73, being the
damages assessed upon the fourth breach, and
10. Whether, &c., as to the sum of $309.87, being the
damages assessed upon the fifth breach.
Page 13 U. S. 230
LIVINGSTON, J. delivered the opinion of the Court as
follows:
This is a joint action of debt on a bond dated 9 January, 1801,
in the penalty of $20,000.
The condition of the bond is as follows:
"Whereas the above bound Aquila Giles hath been appointed the
Marshal in and for the New York District, in pursuance of an act
entitled 'An act to establish the judicial courts of the United
States,' now, the condition of the preceding obligation is such
that if the said A. G. shall, by himself and his deputies,
faithfully execute all lawful precepts directed to the marshal of
the said district under the authority of the United States and true
returns make, and in all things well and truly and without malice
or partiality perform the duties of the office of Marshal in and
for the said District of New York during his continuance in the
said office, and take only his lawful fees, then the obligation to
be void, &c."
General performance is pleaded by the defendants, to which a
replication is filed assigning six breaches, to all of which there
was a rejoinder, sur-rejoinder and issue.
Page 13 U. S. 231
On the issue joined on the first breach the special verdict
finds, that on 20 January, 1800, the said writ of
vend.
exp. and
fi. fa. was delivered to Giles, who, before
he proceeded to execute it, was authorized by the officers of the
Treasury to sell the land of Lamb under said writ for one-fourth
part of the purchase money in cash, one-fourth part payable in two
years from the time of sale, one-fourth part in three years, and
the other fourth part in four years, with interest from the time of
sale, to be secured by bonds and mortgages payable to Giles as
marshal, or to the marshal of the district for the time being, to
and for the use of the United States. That on 17 December, 1800,
John Steele, being Comptroller of the Treasury, did instruct and
order Giles to pay into the Office of Discount and Deposit of the
Bank of the United States in New York, to the credit of the
Treasurer of the United States, all the monies which might be
levied from the property of Lamb by virtue of the said writ of
vend. exp. and
fi. fa. That under these
instructions, Giles proceeded to sell the lands of John Lamb, the
sales of which commenced on 26 November, 1800, and were continued
until 23 December in the same year. That during the sales and
afterwards, and before the execution of the bond by the defendants,
Giles received from some of the purchasers several sums amounting
to $3,713.98, and no more, which sums were paid as the fourth of
the purchase money of the lands bought by them. That Giles has
never brought into court or paid into the bank either of the said
sums, of %50, which was received on 20 January, 1800, on a sale, by
Giles, of the chattels of Lamb, or of $3,713.98, and that he never
was required so to do by any order of the district court. That
while Giles was marshal as aforesaid, a writ of
capias ad
satisfaciendum was issued out of said court and delivered to
him against Elias Hicks on a judgment recovered by the United
States on which was endorsed a direction to Giles to levy the sum
of $33,156.38, besides marshal's fees and poundage; that Hicks was
arrested by Giles and in custody on said writ until discharged
therefrom by the Secretary of the Treasury; that the poundage fees
of Giles thereon, if any were due, have not been paid to him by
anyone, and that they amount, if due at all, to $419.57.
Page 13 U. S. 232
That the United States became indebted to Giles, while marshal
as aforesaid, in the sum of $8,133.96 for his fees and services in
taking the second census in his district and for monies paid to his
assistants, in taking the said census, pursuant to the act in such
case made and provided, which sums amount to $8,553.53, in part
payment of which Giles retains the two sums of $50 and of
$3,713.98. But whether in law he converted them to his own use
contrary to the form and effect of the condition of the said bond
the jurors pray the advice of the court. If the court shall think
that it was such a conversion, the jurors assess damages on this
breach at $3,763.98. But if the court shall be of opinion that such
retaining was no conversion then, the jury says that he did not
convert the same to his use.
2. The second breach assigned is that Giles having, on 17
December, 1800, sold other lands of Lamb under the writ aforesaid
for the further sum of $60,000, received the said sum on 20
January, 1801 (which was after the execution of the bond), and
converted and disposed of the same to his own use.
On the issue joined on this breach, the jury found that Giles,
having made the sales as aforesaid and under the instructions and
orders aforesaid, received from the purchasers, after 9 January,
1801, and before 27 March, 1801 (when he went out of office), the
sum of $1,683.52, and after that day the sum of $17,191.58,
amounting in the whole to $18,875.10, which sums were paid by the
purchasers as the cash payment which was to be made by them for the
land so purchased (which sales took place between 26 November and
23 December, 1800). That the poundage and charges due to and paid
by Giles, and legally chargeable against the proceeds of these
sales amounted to $1,332.85, which leaves in the hands of Giles the
net sum of $17,542.25 of the monies received by him after 9
January, 1801. That on 13 April, 1803, he paid to Edward
Livingston, who was district attorney, the sum of $6,238.35, which
was receipted for on the said writ of execution. That it was then
and yet is the usage and practice
Page 13 U. S. 233
within the said district for the marshal to pay to the district
attorney all monies levied by executions issued by the said
attorney in suits in which the United States is plaintiff. That
this payment was made by and with the approbation of the
Comptroller of the Treasury, and that Giles has never in any other
way paid the said last mentioned sum to the United States or
brought it into court in any other way than by paying it as
aforesaid to the district attorney. That as to another part of the
said sum of $17,542.25, to-wit, the sum of $4,479.68, Giles retains
the same towards satisfaction of an equal sum due to him as
aforesaid from the United States. That the residue of the said sum,
to-wit, the sum of $6,824.22, Giles retains to this day. But it
prays the advice of the court whether Giles converted to his own
use, contrary to the condition of the said bond, the said several
sums of $6,238.35, $4,479.68, and $6,824.22.
1. If he converted all of the said sums contrary, &c., then
it assesses damages at $20,613.12.
2. If he did not convert the said sum of $6,238.35, paid to
Livingston, but converted the other two sums, then it assesses
damages at $14,374.77.
3. If he did not convert the two first sums, to-wit, the sum of
$6,238.35 and $4,479.68, but did convert the sum of $6,824.22, to
his own use, then it assesses damages at $9,895.09.
4. If Giles did not convert to his own use the sum of
$6,824.22s, but did convert the other two sums, then it assesses
damages at $10,718.03.
5. If Giles did not convert to his own use the said sum of
$4,479.68, but did so convert the other two sums, it assesses
damages at $16,133.44.
6. If Giles did not convert to his own use the two sums
Page 13 U. S. 234
of $4,479.68, and $6,824.22, but did so convert the other sum of
$6,238.35, then the damages are assessed at $6,238.35.
7. If Giles did not so convert the two sums of $6,238.35, and
$6,824.22, but did so convert the other sums of $4,479.68, it then
finds damages to the amount of $4,479.68.
8. If, in the opinion of the court, Giles converted neither of
those sums, to his own use, contrary to the effect of the said
condition, then the jury finds that he did not so convert either of
them.
On the issue joined on the fourth breach, the following facts
appear on the special verdict. That on 1 February, 1801, Giles had
in his hands, as marshal, 14 bonds, described in assigning the
fourth breach, belonging to the plaintiffs. That Giles continued
marshal until 27 March, 1801, when he was duly removed and
dismissed from office, and John Swartwout on the same day appointed
marshal of the said district in his place, who continued marshal
until the commencement of this suit. That the said bonds continued
in the hands of Giles until 3 January, 1803, when they were
delivered by him to Edward Livingston who was then district
attorney, by and with the assent and approbation of the Comptroller
of the Treasury. That on 12 January, 1803, Gabriel Duval being
Comptroller of the Treasury, as such did instruct, order, and
direct Giles as late marshall to deliver immediately the said 14
bonds to the said John Swartwout his successor in office, which he
did not do. If the court shall think this was a conversion of these
bonds, the jury assesses damages at $5,255.73. If the court think
otherwise, the jury finds it to be no conversion.
On the subject of the fifth breach, it is found that Giles, on 1
September, 1800, received as marshal $309.87, on an execution
issued against one Richard Capes at the suit of the plaintiffs,
which he retains towards satisfaction of an equal sum due from them
to him. If this be deemed a conversion by the court,
Page 13 U. S. 235
the jury assesses damages at $309.87. But if the court shall not
think so, then the jury on this breach find for the defendants.
It is certified that the circuit court was divided in opinion on
the following points arising on this record.
1. Whether judgment should be given for the plaintiffs or for
the defendants as to the sum of $3,763.98, being the damages
assessed upon the first breach assigned.
2. The like question as to the sum of $20,613.12, being the
first sum assessed as conditional damages, on the second
breach.
3. The same question as to the sum of $14,374.77, being the
second sum conditionally assessed on the second breach.
4. The like as to the sum of $9,895.99, being the third sum
assessed conditionally on the second breach.
5. The like as to the sum of $10,718,03, being the fourth sum
assessed on the second breach.
6. The like question as to the sum of $16,133.44, being the
fifth sum assessed on the second breach.
7. The like question as to the sum of $6,238.35, being the sixth
sum assessed on the second breach.
8. The like question as to the sum of $4,479.68, being the
seventh sum assessed on the second breach.
9. The like question as to the sum of $5,255.73, being the
damages assessed on the fourth breach.
10. The like question as to the sum of $309.87,
Page 13 U. S. 236
being the damages assessed on the fifth breach.
The first point on which the direction of this Court is asked
will require a decision of the following questions.
1. Had Giles a right to retain out of the public monies in his
hands any sums which might be due to him for his services or for
advances made by him as marshal?
2. Are the defendants liable, under the condition of their bond,
for the two sums of $50 and of $3,713.98, received by Giles, the
first sum on 20 January, 1800, and the other on some day prior to 9
January, 1801, which is the date of their bond?
The act of Congress providing for the settlement of accounts
between the United States and the receivers of public monies is so
explicit as to preclude every difficulty in deciding on the first
question. The third section of the law provides that where a suit
shall be instituted against any person indebted to the United
States, the court shall grant judgment at the return term on motion
unless the defendant shall in open court make oath or affirmation
that he is equitably entitled to credits, which had been, previous
to the commencement of the suit, submitted to the consideration of
the accounting officers of the Treasury and rejected, specifying
each particular claim so rejected in the affidavit. The next
section declares that in suits between the United States and
individuals, no claim for a credit shall be admitted upon trial but
such as shall appear to have been submitted to the accounting
officers of the Treasury for their examination and by them
disallowed, unless it shall appear that the defendant at the time
of trial is in possession of vouchers not before in his power to
procure, and that he was prevented from exhibiting a claim for such
credit by absence from the United States, or by some unavoidable
accident.
It is clear then that if this had been an action against Giles
for monies received by him as marshal, he could not
Page 13 U. S. 237
have availed himself of any credit against the public, however
well founded the claim might be, unless he had previously submitted
his title to such a credit to the accounting officers of the
Treasury and they had rejected the same or unless he had been
prevented from so doing by one of the accidents mentioned in the
law.
On this subject, the special verdict on the issue joined on the
sixth breach finds that Giles did not render to the auditor of the
Treasury all his accounts and vouchers for the expenditure of
monies received by him as marshal as aforesaid.
If then, in a suit against Giles himself, a claim for these
credits, under existing circumstances, could not be sustained,
neither can it in an action on this bond without permitting the
defendants to do indirectly what the marshal could not have done
directly, and in this way avail themselves of what the law seems to
regard as default, or at least a negligence on the part of their
principal.
We are next to consider whether the defendants are liable for
the sum of $50 and the sum of $3,713.98 received by Giles. The
first sum was received on 20 January, 1800, en the
fi. fa.
and
vend. exp. issued against the estate of John Lamb, and
the other was received on the same writ after 27 November, 1800,
but before the date of the bond upon which the action is
brought.
It is contended by the defendants that the retaining of monies
which were received by Giles anterior to the date of the bond
cannot be considered a conversion by him within the terms of its
condition, while the plaintiffs, on the contrary, maintain that as
these sums were in his hands at the time of its execution and have
not been paid over to this day, his official delinquency is made
out within the meaning of this instrument, and the responsibility
of the defendants thereby established.
On this point, two of the judges think that the conversion of
these sums by Giles was complete by his not paying them into the
bank, agreeably to the directions of the Comptroller of the
Treasury under which he acted, and that this having taken place
prior to the execution of the
Page 13 U. S. 238
bond the defendants are not liable therefor within the terms of
its condition which are entirely prospective. Two other members of
the Court are of opinion that no demand appearing on the record to
have been made on the marshal for these sums, either by rule of
court or otherwise, no conversion of them is made out, and that
therefore the defendants are not liable. The other two judges think
that although these two sums were received before the date of the
bond, yet as they remained in the hands of the marshal afterwards,
and have not been paid over to this day, the defendants are
accountable for them.
Judgment must therefore be rendered for the defendants as to the
sum of $3,763.98, being the damages assessed upon the first breach
assigned.
The next question on which the court below was divided related
to the sum of $20,613.12, being the first sum assessed as
conditional damages upon the second breach.
By recurring to the special verdict, it appears that Giles
having had a
fieri facias put into his hands on 20
January, 1800, against the real estate of John Lamb, was directed
by the officers of the Treasury to make sales of it for one-fourth
of the purchase money in cash, and for the other three-fourths on
certain credits and securities specified in said instructions.
These sales commenced on 26 November, 1800, and continued until 23
December following.
After 9 January, 1801, and before he went out of office, which
was 27 March following, Giles received of the purchasers of Lamb's
estate $1,683.52, and after that day the sum of $17,191.58,
amounting in the whole to $18,875.10. Deducting the poundage and
charges which the special verdict finds to be legally chargeable
against this sum, there was left in Giles hands the net sum of
$17,542.25, of the monies received by him after 9 January, 1801. On
13 April, 1803, he paid to E. Livingston who was district attorney,
with the assent and approbation of the
Page 13 U. S. 239
Comptroller of the Treasury, the sum of $6,238.35.
Before we examine into the deductions claimed by the defendants
against the sums received by Giles for cash payments, it will be
necessary to settle for what portion of these sums they are
chargeable under the condition of their bond.
Of these sums, a majority of the Court thinks they are liable
for the sum of $1,683.52, which was received between its execution
and the marshal's dismission from office.
Are they also responsible for the sum of $17,191.50, which was
received by Giles after another marshal came into office?
The bond on which this action is brought having been given for
the faithful performance of the duties of Giles as marshal during
his continuance in office, two of the judges are of opinion that
his sureties are not liable for the conversion of the last
mentioned sum which took place after he was out of office by not
paying it as directed by the Comptroller of the Treasury. Two of
the judges do not consider the finding of the jury as fixing upon
Giles a conversion of this sum at any time, inasmuch as it does not
appear that he was ever demanded to pay the same into court or in
any other way. The other two judges are of opinion that the
marshal, being authorized to do certain acts even after his removal
from office, the condition of the bond embraces defaults committed
after such dismission, as well as before, and that the defendants
are therefore liable for the said sum of $17,191.50, although
received by Giles after he ceased to be marshal.
It is however the opinion of a majority of the Court that the
defendants are not so liable under this bond.
Another question arises under this opposition of opinion in the
circuit court, and that is whether the payment to Edward Livingston
in April, 1803, was a payment to the United States.
Page 13 U. S. 240
It is supposed that this payment, being made contrary to the
Comptroller's order of 17 December, 1800, which was to pay all
monies received under this execution into the branch bank at New
York, cannot be regarded as valid.
It is true such instructions are found by the jury, which
certainly do not authorize such payment, yet it is also found,
possibly, from some subsequent instructions of the Comptroller,
which do not appear, or at any rate from evidence which must have
satisfied the jury, that such payment was made with the assent and
approbation of the Comptroller of the Treasury. This finding,
correct or not, must conclude the Court, and it has only to say
whether a payment be good if made under such authority.
The Comptroller is authorized by law "to direct prosecutions to
be commenced for all debts due to the United States." During such
prosecutions, he gives directions how they shall be conducted and
how the monies recovered shall be paid. If, therefore, he directed
or assented to the payment to Livingston, it is difficult to say
that Giles erred or was guilty of any fault either in pursuing his
instruction or in making a payment with his assent and
approbation.
It yet remains to settle, under this branch of the division of
the circuit court, how the payment to Livingston is to be applied.
For although the sum paid to him is much greater than the sum of
$1,683.52 for which it is decided that the defendants are liable,
the benefit which they may derive from such payment will depend in
some measure on the manner of its application.
It does not appear that any direction was given by Giles, or
that any election was made by either party how it should be
applied. Nothing more is known than that Giles, being then indebted
to a much larger amount for monies received at different times
under the execution against the property of Lamb, made this payment
without declaring what particular item in the account of the United
States against him should thereby be discharged. If there be no
designation how a sum paid on account
Page 13 U. S. 241
shall be credited, and there be sureties for part of the debt,
as was the case here, it seems reasonable to some of the judges to
let them have the benefit of it by applying the credit in such a
way as to exonerate them so far as the sum paid shall be sufficient
for that purpose. If regard be had to the order of time in which
the monies were received by Giles, it will be seen that the sum of
$3,763.98, which is the first sum for which he is in arrear, was
received by him prior to 9 January, 1801, and the next sum for
which he is accountable, to-wit the sum of $1,683.52, came into his
hands after that day, but previous to 27 March, 1801, and after
this other monies were received by him. These two sums together are
not equal to the payment which was made to Livingston.
Following this order, the sum for which the defendants are
liable being among the first that were received and being
recoverable with interest on their bond, would on this principle be
extinguished by the first payment if it were sufficient, as was the
case here, to discharge all the monies which had been received
prior to the receipt of the sum for which the defendants are
answerable, and that also. But this is not the opinion of a
majority of the judges. They think, and such is the decision of the
Court, that the United States has yet a right to apply these
payments in a way most beneficial to themselves and so as not to
extinguish the sum of $1,683.52 for which the defendants are
accountable.
The Court then is of opinion that judgment must be given for the
defendants as to the sum of $20,613.12, being the first sum
assessed as conditional damages upon the second breach.
Judgment must in like manner be given for the defendants as to
all the other sums assessed as conditional damages upon the second
breach.
It is next to be decided whether the conditional damages of
$5,255.73, assessed on the fourth breach be recoverable against the
defendants.
These damages are given in consequence of a supposed
Page 13 U. S. 242
conversion by Giles of the fourteen bonds mentioned in the
special verdict. But it being found that these bonds were delivered
to Edward Livingston by and with the assent and approbation of the
Comptroller of the Treasury, the Court is unanimously of opinion,
for reasons already assigned, that such delivery was no conversion
of these bonds by Giles, and that therefore judgment must be
rendered for the defendants as to the said sum of $5,255.73, being
the damages assessed as aforesaid on the fourth breach.
The last question which is submitted to us regards the sum of
$309.87, which it appears by the finding under the fifth breach
assigned was received by Giles on 1 September, 1800, on an
execution at the suit of the United States, against Richard Capes,
which was retained by Giles towards satisfaction of an equal sum
due to him. This sum being received prior to the execution of the
bond, must be regarded within the reasons assigned for not
considering the defendants liable for the two sums of $50 and of
$3,713.98 hereinbefore mentioned, and judgment must accordingly, in
the opinion of a majority of the Court, be given for the defendants
as to the said sum of $309.87, being the damages assessed upon the
fifth breach.
It will be seen that the Court is of opinion that the defendants
are liable under their bond for the sum of $1,683.52, which was
received by the marshal after its execution and before he went out
of office, but by not one of the findings on the different breaches
assigned does it appear to have been contemplated that this sum
alone might be recoverable in this action, and accordingly no
conditional damages are assessed to suit that state of the
case.
The Court therefore can only give its directions as to the
questions submitted to it, which are,
That it must be certified to the circuit court for the District
of New York in the second circuit,
1. That judgment must be given for the defendants as to the sum
$3,763.98, being the damages
Page 13 U. S. 243
assessed upon the first breach of the condition of the bond
assigned in the replication of the plaintiffs.
2. That judgment must be given for the defendants as to the
several sums of $20,613.12, of $14,374.77, of $9,895.09, of
$10,718.03, of $16,133.44, of $6,238.35, and of $4,479.68, being
the several sums assessed as conditional damages on the second
breach.
3. That judgment must be given for the defendants for the sum of
$5,255.73, being the damages assessed upon the fourth breach,
and
4. That judgment must be given for the defendants for the sum of
$309.87, being the damages assessed upon the fifth breach.
